SC's rulings on MPs: Attempt to keep criminals out may trigger vendetta politics

Should our politicians like Caesar's wife be above suspicion, condemned even before they are heard and cast into political wilderness if they are convicted, even by a lower court? Or should they be presumed innocent till proven guilty, and till then left to strut around with all the trappings of power? Should the PappuYadavs and Shahbuddins be allowed to contest from jails? That can help deal with contingencies such as the Emergency during which a host of leaders from the Janata Party contested from prison to defeat Indira Gandhi.

Or should our confident, mature democracy, move on and consign such criminal elements to the dustbin of democratic history and shut that door forever? These are Hobson's choices, really, for the Indian masses. But then what are Supreme Courts for? In twin rulings delivered on Wednesday, the apex court ruled that convicted MPs must quit (earlier they were given three months to appeal to a higher court and, if they got a stay on their conviction, they could hold on to the rest of their terms); and that jailed persons cannot contest elections.

Clearly, the broad sweep of these rulings is aimed at cleansing the democratic polity. But there's also a fear that the field could become even muddier. Whilst most are hailing the good intentions behind the rulings, there are those questioning its practicability, insisting that it will fail the Jharkhand test. It didn't. JMM's Hemant Soren, son of party chief Shibu Soren, was sworn in as Jharkhand's new CM after President's rule was revoked yesterday. But the fear was that the court rulings could come handy to derail the formation of the new Jharkhand government.

After all, six MLAs of the new coalition — cobbled together with the Congress, RJD, smaller parties and independents — are facing investigations for cross-voting in the Rajya Sabha in return for alleged bribes; and another four face criminal cases in the state. In a fractured polity in which wafer-thin majorities are the order of the day, these rulings could make or break a government, setting into motion a domino effect which can create much instability all round, however, unintended.

Pandora's Box

CPM leader Prakash Karat dubs the jailbirds ruling as "unacceptable". "We want the judgement overturned or scrapped as there is a danger that it will be liable to misuse. It can be changed [by a law] through Parliament." Karat adds that the real problem is that lower court verdicts are not final. "They tend to be overturned very often. If you are instantly disqualified what happens if you are acquitted? There is no redressal. The judiciary anyway takes a year or two to dispose of the appeal. So even if a person is eventually acquitted, he loses his seat."

The Congress, wary of being seen as at odds with popular sentiment in the times of Anna Hazare, refuses to air its disquiet in public. But in private a senior Cabinet minister explains the loopholes in the ruling. "Elected representatives cannot be treated on a par with those appointed by the executive," he said. "The government official will get back his post if acquitted but what happens to the MP?" "It could encourage a politician to manage the lower judiciary," a lawyer said on the condition of anonymity. That would help him stave off the inevitable: the loss of his seat and the perks that come with it, he reckoned.

Who will police the MPs into stepping down post-conviction? As per the earlier system, the issue was referred to the President, who acted on the advice of the Election Commission. Will this system continue? Can the President take a different stand? "The government should immediately call an all-party meeting on this," senior BJP leader Ravi Shankar Prasad said. "We cannot shrug off the ruling. It's a good thing that the SC has flagged it. But there are grey areas which need to be addressed."

Former law minister Shanti Bhushan takes a contrarian view. "It is for the people to elect you. If you are convicted, the people will elect someone else. Why are you so keen to represent the constituency? The extra keenness would only indicate that one has another agenda: to abuse power for selfish purposes rather than serve the people." He, however, dubs the ruling on jailbirds "controversial". "It may not be a correct judgement," he adds. Police, he says, can arrest anyone on reasonable suspicion and it is very difficult to prove police mala fide on their part. "So I don't quite agree with it."

Tight Rein on Politicians

BJP spokesperson Nirmala Sitharaman says the party welcomes any step to bring in probity in public life and reform election laws, but these recent rulings have raised some concerns. In 1977, George Fernandes had contested from jails. Most BJP leaders were in jail for over two years. "We still don't know what charges they faced and under what orders they were released," she says.